Unintended Consequences: Implications of the 2014 Australian Defence Force Pay Deal

The Workplace Remuneration Arrangement agreed between the Australian Government and the Australian Defence Force (ADF) provides for a 4.5% pay over 3 years for ADF personnel. This article makes use of the concept of the psychological contract to argue that this pay deal represents a breach of the Australian Government's obligations towards ADF personnel that is likely to have unintended consequences for their long‐term commitment to their ADF careers.     

The Ethics of Plea Bargaining in International Criminal Trials

The paper argues that contemporary theoretical and philosophical concerns relating to the practice of plea bargaining in international trials for crimes such as genocide should be seen in the broader context of the perceived legitimacy of international trial justice. The paper questions the capacity of international trial structures to deliver a form of truth which contributes to justice suggesting that the legitimacy of the truth available is conditioned by ideology and normative practice. The paper suggests that the key to transforming international trial justice lies in promoting the link between trial ideology and the perceived moral legitimacy of its outcomes through the exercise of judicial discretionary power. Ralph Henham is Professor of Criminal Justice, Nottingham Law School, Nottingham Trent University.     

VARIATION IN TRIAL PENALTIES AMONG SERIOUS VIOLENT OFFENSES*

We examine the differences in the sentencing of those who plead guilty and those convicted by jury trial among defendants convicted of serious violent offenses. Drawing from a focal concerns and court communities perspective on court decision making, we develop several hypotheses about jury trial penalties for serious violent offenders, and how such penalties may vary by offense characteristics, defendant characteristics, and court contexts. Our hierarchical models using Pennsylvania sentencing data from 1997 to 2000 reveal that defendants are substantially penalized if they exercise their right to a jury trial and then lose. Furthermore, this jury trial penalty is not evenly assessed, but depends on the seriousness and type of offense, defendant criminal history, and court contextual characteristics such as caseload, court community size, local violent crime rates, and the size of local black populations.     

The Coase Theorem, Private Information, and the Benefits of Not Assigning Property Rights

Using a simple bilateral trading example with discrete valuations and costs it is demonstrated that in the presence of private information the efficiency of Coasean bargaining may be strictly enhanced if initially no property rights are assigned.     

受贿罪相关问题探析——以受贿罪的交易性本质为视角

受贿罪的本质在于行贿方与受贿方之间的交易性.从交易性的本质出发,只要具有一般性和经常性权钱交易条件的主体都可以构成受贿罪;"利用职务上的便利"是指受贿人本人拥有的对行贿人利益予以制约并可以交易的一种社会关系;"为他人谋取利益"作为客观要件,是交易性内容的应有之义,在构成要件中应该删去:贿赂的内容,包括非财产性利益在内的所有不正当利益.     

Toward a Comparative Economics of Plea Bargaining

We attempt to open a path to the comparative analysis of criminal procedure by superimposing the efficiency principle onto an adversarial system characterized by an aversion to false convictions and an inquisitorial system characterized by a desire to justly punish the guilty. We begin with a general model of plea bargaining, embed it in a larger framework that addresses the costs of adjudication, the value of punishing the guilty and the costs of false convictions, and then link the desirability of plea bargaining and compulsory prosecution to the weights given these costs and benefits in the objective function. We examine the judicial endorsement of plea bargaining in the United States and the debate over European analogs to plea bargaining in light of the model, and conclude that plea bargaining will increase social welfare in adversarial systems but not in inquisitorial ones.     

辩诉交易中国化应予缓行——以契约观为视野

契约观念是辩诉交易制度生成与发展的文化基础,是这一制度在争议不断的责难声中仍然弥久不衰的内在动力。只有在弘扬契约精神、尊重社会价值多元化的国度,才能培育和支持辩诉交易制度的运行。从契约观的视角不难看出,辩诉交易中国化应予缓行;其在中国的移植与引进,当须诸方面促就国人契约观念之积淀。     

刑事诉讼中的“审辩交易”现象研究

刑事诉讼中的"审辩交易"是一种客观存在的现象,从法官的视角出发,可以将其分为三种类型,即基于事实疑罪、法律疑罪以及案外因素进行的交易。压力驱动与大权在握的法官,在主动与被动之间的被告方,作为旁观者的公诉方以及被和解或者不知情的被害方的理性选择促成了"审辩交易"的达成。审判权力行政化的运行机制、不合理的诉讼真实理念、案件分流机制的匮乏以及不当的绩效考评机制导致法官承担巨大的压力,法官选择进行交易是转移压力的一种方式。目前,"审辩交易"的存在有一定的合理性,但也存在大量的弊端,要改变这种压力后置型的司法模式,需要对导致"审辩交易"现象发生的诸多因素进行改革。     

Bargaining Between Rebel Groups and the Outside Option of Violence

Although military cooperation among rebel groups in multi-party civil wars could help rebels defeat or extract concessions from an incumbent government, violent conflict among rebel groups is empirically prevalent. Why do rebel groups in multi-party civil wars choose to fight one another? This article models the strategic dilemma facing rebel groups in multi-party civil wars as an alternating-offer bargaining game of incomplete information with an outside option. The game-theoretic model explores the relationship between the status quo distribution of power among rebel groups, the costs of fighting, and the likelihood that one rebel group will opt to unilaterally end bargaining over a set of goods, such as access to supply routes, natural resources, and control over civilian populations. We show that the likelihood of violent conflict between rebel groups is lowest when the status quo distribution of benefits reflects the existing distribution of power.     

Party Size and Portfolio Payoffs: The Proportional Allocation of Ministerial Posts in Coalition Governments

Over 30 years ago, Eric Browne and Mark Franklin demonstrated that parties in a coalition tend to receive portfolio payoffs in almost perfect proportionality to their seat share. Even though this result has been confirmed in several studies, few researchers have asked what the underlying mechanism is that explains why parties receive a proportional payoff. The aim of this paper is to investigate the causal mechanism linking party size and portfolio payoffs. To fulfil this aim, a small-n analysis is performed. By analysing the predictions from a statistical analysis of all post-war coalition governments in 14 Western European countries, two predicted cases are selected, the coalitions that formed after the 1976 Swedish election and the 1994 German election. In these case studies two hypotheses are evaluated: that the proportional distribution of ministerial posts is the result of a social norm, and that parties obtain payoffs according to their bargaining strength. The results give no support to the social norm hypothesis. Instead, it is suggested that proportionality serves as a bargaining convention for the actors involved, thus rendering proportional payoffs more likely.